Another weird one today. The case of the overprotective mother vs. a company with paper-thin walls and no call recording capabilities.

In Vargas v. Vehicle Solutions Corp., Case No: 8:19-cv-1109-T-60AAS, 2020 U.S. Dist. LEXIS 203956 (MD. Fl. Nov. 2, 2020) refused to grant plaintiff’s affirmative summary judgment motion when the defendant—who apparently lacked call recordings—opposed the motion with testimony by employees (including a supervisor who purportedly overheard the conversation) claiming to remember the precise content of the calls 20 months after the fact.

Sounds like a triable issue to me.

So here’s what happened according to the ruling: The Plaintiff’s son worked for her and owed money to the Defendant. Plaintiff would just deduct sums owed to her son to pay for the debt owed to Defendant. I’m guessing the mom wanted to make sure the son actually paid the bills on time.

Some confusion arose, however, and the Plaintiff failed to make timely payments on the son’s account. (Thanks mom!) This lead to collection phone calls from the business to the son, who is not a party to the case.

Keeping up the helicopter mom theme, Plaintiff called the Defendant to sort things out for her son one day in December, 2018. Plaintiff claims she never consented to receive calls that day and, instead, that the Defendant captured her phone number and then started blasting her with collection calls without consent.

Plaintiff filed a summary judgment motion explaining to the Court her side of the story and emphasizing the lack of any contrary evidence. But the Defendant was not going to give up without a fight and submitted a declaration from the agent that had spoken to the Plaintiff on the key date (which had taken place 20 months before the declaration was signed) attesting that the Plaintiff had indeed provided consent and had not subsequently asked for calls to cease. The Defendant also submitted deposition testimony from the agent’s supervisor to the effect that she was listening in on the call from her nearby office and could confirm that the Plaintiff did not ask for calls to stop. (Speaker phone?)

The supervisor also explained that if a customer asks the Defendant to stop calling it is the Defendant’s policy to have the supervisor talk to the customer, apparently in an effort to keep calling the person—another really not good idea. But the agent had not alerted her of the Plaintiff’s purported revocation, hence—it follows—no revocation took place. This is the ole “if-they-had-wanted-us-to-stop-calls-it-was-my-job-to-not-let-them-so-I-would-have-known-about-it” defense.

The Court found that the stories presented by the two sides stood in stark contrast to one another and only a jury could figure out what really happened.

So, the case is headed to a trial.

A couple of pretty clear take aways from this one. First, hold onto your call recordings folks. Really surprising that this operation had to rely on the memory of its agents in order to defend this suit.

Second, do NOT use an autodialer to call numbers you grab off of inbound calls—especially if the numbers belong to third parties who you lack a contract with. Really bad idea.

Third, probably don’t require your customers to talk to a supervisor in order to revoke consent (unless you have a contractual basis to do so.) It worked out ok for the Defendant in this one—it actually afforded evidence a revocation did not take place—but encumbering a consumer’s ability to revoke their consent might be viewed as refusing to honor “reasonable” revocation requests—which might really go bad for you.

Fourth, and most importantly, make your kids pay their own bills.